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U.S. District Court in West Virginia Issues Explanation of Why January Declaration of Candidacy Deadline is Almost Surely Unconstitutional (October 21, 2016, 02:35 PM)

On October 21, U.S. District Court Judge Robert C. Chambers issued 2016-10-21-023-memorandum-opinion-and-order in Daly v Tennant, s.d., 3:16cv-8981. It explains why the judge put Darrell Castle on the West Virginia ballot on September 22, along with various other Socialist Equality and Constitution and independent nominees for various offices. Sometimes judges issue injunctions and don’t explain their basis immediately, and this case is an example of that. The October 21 order explains that West Virginia’s law, requiring independent candidates and the nominees of unqualified parties, to file a declaration of candidacy in January, appears to violate the U.S. Constitution. The order says a January deadline “prematurely cuts off such candidate’s opportunity to respond to later developements…the January deadline deprives these candidates from knowing the political climate of the major parties and what issues will come to the forefront during campaigns. It also seriously impairs their abilities to raise support, money, and recognition for their campaigns.”

These quotes have special resonance, given the August 2016 entrance into the campaign by Evan McMullin. Although McMullin was not a plaintiff in the West Virginia case, and did not get on the West Virginia ballot, he would have been a model candidate-plaintiff for lawsuits against early deadlines in many states, especially Texas, Illinois, Indiana, and North Carolina. McMullin’s failure to file any ballot access lawsuits is a missed opportunity.

Ohio Libertarian Party Files Brief In State Court of Appeals, Over Constitutionality of 2013 Ballot Access Restriction (October 21, 2016, 01:44 PM)

On October 21, the Ohio Libertarian Party filed this brief in the Ohio State Court of Appeals. The case is Libertarian Party of Ohio v Ohio Secretary of State, 16APE-07-496. The issue is whether the 2013 bill passed by the Ohio legislature, setting out the current definition of “party” and provision for new parties to get on the ballot, violates the Ohio Constitution. The 2013 law, combined with the Republican Party’s successful challenge of the LP’s gubernatorial candidate in 2014, has kept the party off the ballot this year and given it no easy way to ever recover its party status.

The main basis for the lawsuit is the Ohio Constitution, Article V, sec. 7, which says, “All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law.” The 2013 law appears to violate this provision because it says that newly-qualifying parties can’t have a primary, but nominate by their own devices. The legislature attempted to evade this problem in 2013 when it wrote that a new party not only needs a very difficult party petition (which will probably require over 50,000 signatures in 2018), but also each nominee of a new party needs his or her own separate candidate petition. But the Ohio Libertarian Party brief points out that this provision of the Ohio Constitution has already been interpreted by the Ohio Supreme Court (in 1963) and by the Sixth Circuit, to not refer to party nominations at all. Instead “by petition” has always in the past referred only to independent candidates.

The brief also argues that it violates Equal Protection to deprive newly-qualifying parties of a primary, because under Ohio election law, party “members” are defined by their decision to vote in a particular party’s primary. Without a primary, a newly-qualifying party won’t have any legal “members”, whereas the old parties do have very valuable membership lists.

The Ohio State Court of Appeals will decide this case after the 2016 election is over. Courts do a better job when they adjudicate cases such as this after an election, instead of before an election. Everyone, including the judges themselves, will be more relaxed and more able to do an objective job.

Colorado Initiative to Require the Democratic and Republican Parties to Let Independents Vote in Primaries Explained (October 21, 2016, 10:49 AM)

The Durango Herald has this explanation of Colorado’s proposition 108, which would require parties that polled 10% in the last gubernatorial election, and which therefore have primaries, to let independents vote in their primaries. However, the parties would have the option of giving up their primaries in any particular year and nominating by convention, but only if 3/4ths of their state central committees agree to do that.

Under current Colorado law, independents can decide on primary election day that they want to vote in a major party primary, but to do that they are technically joining the major party whose primary ballot they choose. Proponents of the initiative say some voters are conscientiously opposed to taking that step.

Also under current law, in rare cases, the ballot-qualified minor parties (Libertarian, Green, Constitution) have primaries for a few offices. This only happens when those parties hold a nominating convention and two candidates for a particular office both make a strong showing at the convention. It has never happened for a statewide office. Proposition 108 would not change that, and qualified minor parties could still choose not to allow independents in these occasional primaries.

Larry Sanders, Brother of Bernie Sanders, Places Fourth as Green Party Nominee in Special British Election (October 21, 2016, 10:40 AM)

On October 20, Larry Sanders, elder brother of Bernie Sanders, placed fourth in a British special House of Commons election. Larry Sanders was the Green Party nominee. See this story. It is not surprising that the Conservative Party won this special election, because it is a safe seat for the Conservative Party.

Democratic Party Has More State Legislative Candidates than Republican Party Does, for First Time Since 2008 (October 20, 2016, 08:20 PM)

This year, there are Democratic candidates for state legislature in 4,690 of the races. There are Republican candidates for state legislature in 4,655 races. This is the first time since 2008 that there have been more races with a Democrat running than with a Republican running.

In 41.7% of the legislative races this year, either the Republicans, or the Democrats, failed to run anyone. That isn’t quite as bad as 2014, when the percentage of races without one of the major parties was 43.3%.

Charleston, West Virginia Daily Newspaper Endorses Libertarian for Secretary of State (October 20, 2016, 06:59 PM)

The largest newspaper in West Virginia, the Charleston Gazette-Mail, has endorsed John Buckley for Secretary of State. He is the Libertarian nominee. There are three candidates in the race; the others are incumbent Democrat Natalie Tennant, and Republican Mac Warner. Here is the editorial.

U.S. District Court in Virginia Extends Voter Registration Deadline Two Days (October 20, 2016, 12:57 PM)

On October 20, U.S. District Court Judge Claude Hilton extended the Virginia deadline for registering to vote two more days. The state did not oppose the lawsuit, which had been filed on October 18. The reason is that the on-line voter registration page of the State Board of Elections hasn’t been working this week. It apparently crashed because too many people were trying to use it.

Both sides urged the judge to extend the deadline through Monday, October 24, but he only extended it until the end of the day Friday, October 21. There are fears that the site may crash again. The case is New Virginia Majority Education Fund v Virginia Department of Elections, e.d., 1:16cv-1319. See this story. Thanks to Rick Hasen for the link.

Six Write-in Presidential Candidates File to Have North Dakota Write-ins Counted (October 20, 2016, 12:42 PM)

The North Dakota deadline for a declared write-in presidential candidate to file was October 18. Six individuals filed: Robert Buchanan, Cherunda Fox, Laurence Kotlikoff, Mike Maturen, Evan McMullin, and Marshall Schoenke.

Six presidential candidates are on the ballot in North Dakota: Donald Trump, Hillary Clinton, Gary Johnson, Jill Stein, Darrell Castle, and Rocky De La Fuente.

Washington State Treasurer?s Race, with Two Republicans on Ballot, Gains a Write-in Democratic Candidate (October 20, 2016, 12:22 PM)

Because Washington state uses a top-two system, this year’s Treasurer race happens to have only two Republicans on the November ballot, Duane Davidson and Michael Waite. In the August primary, the three Democrats split up the Democratic vote, so that the two Republicans placed first and second.

Now, a Democrat has entered the race as a declared write-in. He is Eric Miller, and he is actively campaigning. Washington state (unlike California) permits write-in votes in November for top-two offices. However, so far, the media in Washington state has given him little publicity. Washington state doesn’t release write-in results unless the write-in candidate gets at least 1% of the total vote cast in that office.

New York Has Approximately 30 Declared Write-in Presidential Candidates; List Still Isn?t Final (October 20, 2016, 12:09 PM)

New York is among the majority of states that counts presidential write-ins for candidates who filed a declaration of candidacy. The deadline for that was Tuesday, October 18. The State Board of Elections will post the list early next week. It still isn’t final, because declarations only had to be postmarked by October 18 and it is possible some more will arrive in the postal mail this week. Among the 30 who have already filed are Evan McMullin and Rocky De La Fuente.

New York has never before had nearly so many declared write-in presidential candidates. New York only requires a single candidate for presidential elector; the state does not require a full slate. That means it is easier to file in New York than in many other states.

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